Republic of the Philippines


G.R. No. L-19313             January 19, 1962

DOMINADOR R. AYTONA, petitioner,
ANDRES V. CASTILLO, ET AL., respondents.

R E S O L U T I O N.


Without prejudice to the subsequent promulgation of more extended opinion, the Court adopted today, the following resolutions: .

On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad interim Governor of the Central Bank. On the same day, the latter took the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim appointment made by President Garcia after December 13, 1961, (date when he, Macapagal, had been proclaimed elected by the Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as ad interim Governor of the Central Bank, and the latter qualified immediately.

On January 2, 1962, both appointed exercised the powers of their office, although Castillo informed Aytona of his title thereto; and some unpleasantness developed in the premises of the Central Bank. However, the next day and thereafter, Aytona was definitely prevented from holding office in the Central Bank.

So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's right to exercise the powers of Governor of the Central Bank. Aytona claims he was validly appointed, had qualified for the post, and therefore, the subsequent appointment and qualification of Castillo was void, because the position was then occupied by him. Castillo replies that the appointment of Aytona had been revoked by Administrative Order No. 2 of Macapagal; and so, the real issue is whether the new President had power to issue the order of cancellation of the ad interim appointments made by the past President, even after the appointees had already qualified.1äwphï1.ñët

The record shows that President Garcia sent to the Commission on Appointments — which was not then in session — a communication dated December 29, 1961, submitting "for confirmation" ad interim appointments of assistant director of lands, councilors, mayors, members of the provincial boards, fiscals, justices of the peace, officers of the army, etc.; and the name of Dominador R. Aytona as Governor of the Central Bank occupies number 45, between a justice of the peace and a colonel of the Armed Forces.

Another communication of President Garcia bearing the same date, submitted a list of ad interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of police, justices of the peace, mayors, councilors, etc. number 63 of which was that of Dominador R. Aytona for Governor of the Philippines in the Boards of International Monetary Fund, International Bank for Reconstruction and Development, etc.

A third communication likewise dated December 29, 1961, addressed to the Commission on Appointments submitted for confirmation 124 names of persons appointed as judges of first instance, members of provincial boards, and boards of government corporations, fiscals, justice of the peace, even one associate justice of this Court occupying position No. 8 and two associate justices of the Court of Appeals (9 and 10) between an assistant of the Solicitor-General's Office, and the chairman of the board of tax appeals of Pasay City, who in turn are followed by judges of first instance, and inserted between the latter is the name of another associate justice of the Court of Appeals.

There were other appointments thus submitted by President Garcia on that date, December 29, 1961. All in all, about three hundred fifty (350) "midnight" or "last minute" appointments.

In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1) the outgoing President should have refrained from filling vacancies to give the new President opportunity to consider names in the light of his new policies, which were approved by the electorate in the last elections; (2) these scandalously hurried appointments in mass do not fall within the intent and spirit of the constitutional provision authorizing the issuance of ad interim appointments; (3) the appointments were irregular, immoral and unjust, because they were issued only upon the condition that the appointee would immediately qualify obviously to prevent a recall or revocation by the incoming President, with the result that those deserving of promotion or appointment who preferred to be named by the new President declined and were by-passed; and (4) the abnormal conditions surrounding the appointment and qualifications evinced a desire on the part of the outgoing President merely subvert the policies of the incoming administration.

It is admitted that many of the persons mentioned in the communication to the Commission on Appointments dated December 29, 1961, did not qualify. There is evidence that in the night of December 29, there was a scramble in Malacañan of candidates for positions trying to get their written appointments or having such appointments changed to more convenient places, after some last minute bargaining. There was unusual hurry in the issuance of the appointments — which were not coursed through the Department Heads — and in the confusion, a woman appointed judge was designated "Mr." and a man was designated "Madam." One appointee who got his appointment and was required to qualify, resorted to the rush of asking permission to swear before a relative official, and then never qualified.

We are informed, it is Malacañan's practice — which we find to be logical — to submit ad interim appointments only when the Commission on Appointments is in session. One good reason for the practice is that only those who have accepted the appointment and qualified are submitted for confirmation. Nevertheless, this time, Malacañan submitted its appointments on the same day they were issued; and the Commission was not then in session; obviously because it foresaw the possibility that the incoming President would refuse to submit later the appointees of his predecessor. As a result, as already adverted to, some persons whose names were submitted for confirmation had not qualified nor accepted their appointments.

Because of the haste and irregularities, some judges of first instance qualified for districts wherein no vacancies existed, because the incumbents had not qualified for other districts to which they had been supposedly transferred or promoted.

Referring specifically to judges who had not qualified, the course of conduct adopted by Former Chief Justice Moran is cited. Being ambassador in Spain and desiring to return to this Court even as associate justice, Moran was tendered an ad interim appointment thereto by President Quirino, after the latter had lost the election to President Magsaysay, and before leaving the Presidency. Said Ambassador declined to qualify being of the opinion that the matter should be left to the incoming newly-elected President.

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a "care-taker" administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions1 irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.

Normally, when the President makes appointments the consent of the Commission on Appointments, he has benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his selection either previous consultation with the members of the Commission or by thereafter explaining to them the reason such selection. Where, however, as in this case, the Commission on Appointments that will consider the appointees is different from that existing at the time of the appointment2 and where the names are to be submitted by successor, who may not wholly approve of the selections, the President should be doubly careful in extending such appointments. Now, it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such "double care" which was required and expected of him; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that it must decline to disregard the Presidential Administrative Order No. 2, cancelling such "midnight" or "last-minute" appointments.

Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances justifying revocation3 and if any circumstances justify revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.

WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby dismiss the action, without costs.

Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Separate Opinions

PADILLA, J., concurring:

Once more this Court has to pass upon and determine a controversy that calls for an interpretation of the provisions of the Constitution. The facts that gave rise to the petition need not be restated as they are set forth in opinion rendered for the Court. The question is whether the appointment of a person to a public office by a President whose term of office was about to expire or cease is lawful or does not contravene the Constitution; or, if lawful after the appointee has taken his oath, until when would such appointment be valid and effective. The constitutional point involved seems to have been overlooked the framers of the Constitution. It would seem that the framers, well-meaning persons that they were, never foresaw an eventuality such as the one confronting the Republic. The framers never thought and anticipated that citizen elevated by the people to such an exalted office the President of the Republic, would perform an act which though not expressly prohibited by the Constitution and the law, ought not to be done, since a sense of propriety would be enough to stop him from performing it.

The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which provides that —

The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Under these constitutional provisions there seems to be no doubt that the President may make the appointment, and if approved by the Commission on Appointments, it would unquestionably be lawful, valid and effective, but if disapproved or not acted upon by the Commission on Appointments then the appointment becomes ineffectual and the appointee ceases and can no longer perform the duties of the office to which he had been appointed.

It is urged that the petitioner's appointment having been made by the President during the recess of the Congress and he having taken his oath, the appointment is lawful, valid and effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress should the Commission on Appointments fail to act on it.

Ad interim appointments that the President may make during the recess of the Congress are those made during a period of time from the adjournment of the Congress to the opening session, regular or special, of the same Congress. In other words, if the President had convened in a special session the fourth Congress whose term was to expire on the 30th of December 1961 and during such session the ad interim appointments had been confirmed by the Commission on Appointments there would be little doubt that the appointments would be lawful and valid.

The government established by the Constitution is one of checks and balances to preclude and prevent arrogation of powers by officers elected or appointed under it.

Under the provisions of the Constitution "The term of office of Senators shall be six years and shall begin on the thirtieth day of December next following their election."1 And "The term of office of the Members of the House of Representatives shall be four years and shall begin on the thirtieth day of December next following their election."2 Under section 10, paragraph 4, article VII, of the Constitution, above quoted, the President may make appointments during the recess of the Congress, "but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." .

The term "recess", in its broadest sense, means and refers to the intervening period between adjournment of a regular session of one hundred days exclusive of Sundays, or of a Special session which cannot continue longer than thirty days, and the convening thereof in regular session once every year on the fourth Monday of January or in special session to consider general legislation or only such subjects as he (the President) may designate.3 And such intervening period refers to the same Congress that had adjourned and was to be convened. Such intervening period cannot refer to two different Congresses, one that has adjourned and one newly chosen or elected to meet in regular session as provided for by the Constitution, or in special session by the call of the President.

The term of the President ... shall end at noon the thirtieth day of December following the expiration four years after (his) election and the term of (his) successor shall begin from such time.4

If the ad interim appointments made by the President during the recess of the Congress are effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress — a limitation on the power of the President — there is a cogent and strong reason for holding to be the intent of the framers of the Constitution that such appointments made by him ceased to be valid and effective after the term of the Congress existing at the time of the making of such appointments had ended or expired. The end or expiration of the of the Congress existing at the time of the making of the ad interim appointments by the President is a stronger cause or reason for the lapse or ineffectuality of such appointments than "the next adjournment of the Congress." Since that Congress no longer exists and hence can no longer convene and then "adjourn." The effectivity and validity of the appointment of the petitioner as Governor of the Central Bank ceased, lapsed and expired on thirtieth of December 1961. He is no longer entitled hold the office to which he had been appointed. My vote, therefore, is for the denial of the petition.

Dizon, J., concurs.

I concur with the foregoing concurring opinion of Justice Padilla, the same being based on an additional ground justifying denial of the petition under consideration.

BAUTISTA ANGELO, J., concurring: .

In addition to the reasons stated in the resolution adopted by this Court on January 19, 1962, I wish to express the following views: .

1. The "midnight appointments" made by President Garcia were extended by him under Section 10, Paragraph 4, Article VII of the Constitution which provides: "The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." It is clear that these appointments can only be made during the recess of Congress because they are ad interim appointments.

The term "recess" has a definite legal meaning. It means the interval between a session of Congress that has adjourned and another of the same Congress. It does not refer to the interval between the session of one Congress and that of another. In that case the interval is not referred to as a "recess" but an adjournment sine die. Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court said: "The 'recess' here referred to by Judge Cooley means the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die." Since the appointments in question were made after the Fourth Congress has adjourned sine die and ceased to function on December 30, 1961, they cannot partake of the nature of ad interim appointments within the meaning of the Constitution.

2. The Commission on Appointments under our constitutional set-up is not continuing body but one that co-exists with the Congress that has created it. This is so because said Commission is a creation of the Senate and of the House of Representatives. While the Senate is a continuing body, the House ceases at the end of its fourth year. It cannot therefore be continuing it being a creation of a body half of which is alive and the other half has ceased to exist. This theory can also be gleaned from the proceedings of the constitutional convention.

Thus, the preliminary draft of the Philippine Constitution provides for a permanent Commission and for the holding of sessions of the Commission even during the recess of Congress. After mature deliberation the proposal was defeated and a substitute was adopted which is now embodied in Article VI, Section 12, of our Constitution. As a matter of fact, as finally adopted, the Commission on Appointments has to be organized upon the convening of a new Congress after the election of the Speaker of the House of Representatives or of the President of the Senate, as the case may be, as provided for in Section 13, Article VI of the Constitution (Article VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The Framing of the Constitution, pp. 982, 987).

An ad interim appointment, to be complete, needs to be submitted to the Commission on Appointments one the same is constituted. This is reflected in the Constitution when it provides that "such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress" (Section 10, Paragraph 4, Article VII). This mean that it must be submitted to the Commission on Appointments of the Congress that has created it. It cannot be submitted to the Commission on Appointments of a different Congress. Since the appointments in question were submitted to the Commission on Appointments which ceased to function on December 30, 1961, they lapsed upon the cessation of said Commission. Consequently, they can be recalled by the new Chief Executive.

3. An ad interim appointment is not complete until the appointee takes the oath of office and actually takes possession of the position or enters upon the discharge of its duties. The mere taking of the oath of office without actual assumption of office is not sufficient to constitute the appointee the actual occupant thereof who may not be removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an ad interim appointment becomes permanent and binding. That case involves a cadastral judge who was given an ad interim appointment as judge at large. After assuming the office and discharging his duties, his appointment was not confirmed. He claimed that he could still revert to his former position as cadastral judge. True, this Court made a statement therein that an ad interim appointment becomes permanent after taking the oath of office, but such statement is merely an obiter dictum because the case could have been decided on the doctrine that, having accepted an incompatible office, petitioner was deemed to have abandoned the position of cadastral judge.

In relying on certain cases for the proposition that once an appointee has taken the oath of office his appointment becomes irrevocable petitioner fails to consider that in said cases there had either been an actual discharge of duty and actual physical possession or assumption of office following the oath-taking as to constitute the appointee the occupant of the position from which he cannot be removed without cause. Even the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for there the appointees were merely nominated and their nominations confirmed by the Commission on Appointments even if they have later taken their oath of office. Certainly, they can no longer be deprived of their appointments for then the executive would be acting in disregard of the confirming body which is a coordinate and independent body not subject to his control.

Since the appointments in question were made not in the light of the views herein expressed, I am of the opinion that they did not ripen into valid and permanent appointments and as such were properly recalled by the new Chief Executive.

CONCEPCION, J., concurring in part and dissenting in part: .

It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and the equities of the case in denying said writs, I concur, therefore, in the aforementioned resolution.

However, I cannot see my way clear to subscribing the observations therein made representing the motives allegedly underlying petitioner's appointment and that of many others who are not parties in this case, and justifying the revocation of such appointments. My reasons, among others, are: .

1. Save where the incumbent has a temporary appointment or is removable at the will of the appointing power, an appointment once complete, by the performance of all acts required by law of the appointing power, is irrevocable.

An appointment to office may be revoked at any time before the appointment becomes final and complete, but thereafter unless the appointee is removable at the will of appointing power. For the purpose of this rule, an appointment to office is complete when the last act required of the person or body vested with the appointing power has been performed. Where by constitutional, statutory, or other legal provision it is required that certain steps be taken to make effective appointment, it has been held that the appointment becomes complete beyond the possibility of recall when the last of the prescribed steps is taken, and that, where no method of appointment is provided, an appointment does not become effective and beyond recall until the appointing officer by some act or word evinces a final intent to vest the appointee with title to the office." (67 C.J.S., pp. 161-162) .

After the act of appointment is complete, the appointing authority may not revoke its former appointment and make another. And appointment to office is complete when the last act required of the person or body vested with the appointing power has been performed. (56 C., p. 954) .

In all jurisdictions where appointment to office is regarded as an executive function, as here, an appointment to office once made is incapable of revocation or cancellation by the appointing executive in the absence of a statutory or constitutional power of removal. Barrett v. Duff 114, Kan. 220; 217 P. 918; People v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation." (McChesney v. Sampson, 23 S.W. 2d., 584) .

May an appointment be revoked by reason of error or fraud? This question was taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scofield vs. Starr (63 A 512). The first involved a City Charter providing that its common council shall, in joint convention, appoint a prosecuting attorney. In such convention, Coogan obtained a majority of the votes cast and of the convention. Upon announcement of this result, a member of the convention offered a resolution declaring Coogan elected, but the resolution was defeated. Then, two resolutions were offered and approved: one declaring that the ballots taken were null and of no effect by reason of errors in the same and another declaring Barbour elected prosecuting attorney. The issue was who had been appointed thereto. The court held that it was Coogan, he having obtained a clear majority and there having been no error or fraud in the voting, although it did not deny the power of the convention to correct errors and to nullify the effects of fraud in the voting by invalidating the same and calling another election, had the proceedings been tainted with such error or fraud.

The second case referred to a similar provision in a city charter, to the effect that appointments by the common council shall be by ballot and that the person receiving a plurality of ballots shall be elected. The first balloting taken for the election of the city surveyor of Brigeport resulted in 25 ballots being cast. It was announced that there was one ballot more than members voting, and that there were 13 ballots for Scofield, 11 for Starr and one blank ballot. Scofield maintained that this result amounted to his appointment precluding the council from taking a new ballot but such pretense was rejected. Inasmuch as the number of ballots cast exceeded the number of persons voting, the council was justified in believing that the proceeding was not free from suspicion of fraud or mistake in the voting and, accordingly in taking another vote.

In both cases, the fraud or mistake alluded to referred to the manner of voting or of counting the ballots cast, not to the intent of the voters in choosing a particular appointee.

2. An ad interim appointment, made during a recess of Congress, is complete and irrevocable upon the performance of the last act required by law from the appointing power, even without previous notice to the appointee, or acceptance by him, or without subsequent action of the legislative organ that may terminate its effectivity.

In the case of appointment made by a single executive such as a governor, mayor, etc., it is undisputed that the appointment once made is irrevocable.

x x x           x x x           x x x

Where an appointment subject to confirmation by the senate is made by a governor during a recess of the senate, ... the question arises as to whether such an appointment may be reconsidered and withdrawn by the governor before it is acted upon by the Senate.

x x x           x x x           x x x

In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments made by the governor during a recess of the legislature, which appointments could not be confirmed by the senate as required by law until the next session of that body, were revoked by the governor's successor, and other persons were appointed to the offices, such action by him being taken after the senate had convened and had taken under advisement the confirmation of the persons first appointed to the offices, but before the senate had taken any definite action with regard to such confirmation, and the senate, confirmed the first appointee, but, despite this act of the senate, commissions were issued by the governor to the second appointee, it was held, in reliance upon the terms of the statutes which provided that the governor should 'appoint' persons to such offices with the advice and consent of the senate, as distinguished from the provision of the Constitution of the United States governing appointments by the President, which provides that the President shall 'nominate' and, by and with the advice and consent of the senate, shall 'appoint' persons to office, that the act of the governor in making the first appointments was final and exhausted the power of the governor's office in that regard unless and until the appointments were rejected by the senate, and that, therefore, the persons appointed by the first governor were entitled to the office. In the words of the court, 'The power of the governor having been exercised, he had no further power of the governor having been exercised, he had no further control over the respective offices unless and until the appointees had been rejected by the senate.' In reaching this result, the court emphasized the difference between a nomination and an appointment, holding that, where the statute relating to appointments by the governor with the consent of the senate provides that the governor shall appoint persons to the office with the consent of the senate, rather than merely nominate persons for consideration by the senate, the appointment is final and conclusive without confirmation. ... .

Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of governor in making a recess appointment was held to be not merely a nomination subject to revocation by the governor at any time prior to action thereon by the senate, but a final and irrevocable appointment subject only to rejection by the senate. In support of this result, it was said: 'It is urged that appointment to the office consists of two separate acts, one by the governor and one by the senate, and until both have acted there is no appointment such as to bring the incumbent within the protection of the law. Even so, the two powers do not act concurrently, but consecutively, and action once taken and completed by the executive is not subject to reconsideration or recall. ... The fact that the title to the office, and the tenure of the officer, are subject to the action of the senate, does not render incomplete the act of the chief executive in making the appointment. The appointment alone confers upon the appointee for the time being the right to take and hold the office, and constitutes the last act respecting the matter to be performed by the executive power.' .

x x x           x x x           x x x

In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an appointment made by a governor to fill an office which had expired during a recess of the legislature was not merely an appointment to fill a vacancy which would expire at the end of the next session of the legislature, but was an appointment for a full term, and that the act of the governor during a subsequent session of the legislature, in appointing another to the office and asking his confirmation by the legislature, was unauthorized and void, it was said that, the power of the executive having been once exercised, he had no further control over the office until the appointee has been rejected by the senate." (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability of the ad interim appointment adverted to above becomes more apparent when we consider that the House, Commission on Appointments or other agency of Congress charged with the function of terminating the effectivity of such appointment, may act thereon, by approving or disapproving the same, even though the Executive had not submitted or forwarded it to said House, Commission or agency of Congress, and even though either the outgoing or the incoming Executive shall have submitted for confirmation the name of a subsequent appointee in lieu of the first one..

This was the situation met in People ex rel, Emerson vs. Shawver (30 Wyo 366, 222 Pac. 11). The facts therein were: On July 1, 1919, Governor Carey of Wyoming appointed Emerson as state engineer, to fill the vacancy caused by the resignation of its incumbent. Upon the expiration of the latter's term, Governor Carey reappointed Emerson for a full term of six (6) years, from and after April 1, 1921. This last appointment was confirmed by the state legislature at its next session in 1923. Prior thereto, however, Governor Carey's term had expired and his successor had appointed Shawver as state engineer. Thereupon Shawver ousted Emerson from such office. It was held that Emerson had a better right thereto; that his appointment in 1921 was a completed appointment, requiring no action by the Senate to entitle him to hold said office; that a recess appointment once made by "the executive is not subject to reconsideration or recall, "even though not as yet confirmed by the Senate, inasmuch as," the appointment alone confers upon the appointee for the time being the right to take and hold the office, and constitutes the last act respecting the matter to be performed by the executive power"; and that, although the term of Governor Carey had expired and neither he nor his successor had forwarded Emerson's appointment to the Senate for confirmation or requested the Senate to act upon said appointment, the same had been validly confirmed by said body, for .

The provision as to the office here in question found in the Constitution does not say that the appointment made by the Governor shall be confirmed by the Senate when requested by the former, or upon a communication by him submitting the matter to the Senate. And we perceive no substantial reason for adding by construction any such restriction upon the Senate's right to act. (People v. Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517, and other cases cited in the Shawver case.) .

4. The foregoing goes to show, also, that the question whether the Commission on Appointments is or is not a continuing body can not affect the determination of the case. Besides, the constitutional provision making an ad interim appointment, if not disapproved by the Commission on Appointments, effective only until the next adjournment of Congress, clearly indicates that such Commission must have an opportunity to approve or disapprove the appointment and that its inaction, despite such opportunity, at the session of Congress next following the making of the appointment — during which it could have met, and, probably, did meet — must be understood as an expression of unwillingness to stamp its approval upon the act of the executive. No such opportunity exists when the outgoing Congress has not held any session, regular or special after the making of the appointment and before the expiration of the term of said Congress, and the new Congress has not, as yet, organized itself or even met.

5. The American rule concerning irrevocability of appointments is bolstered up in the Philippines by Section 4 of Article XII of the Constitution, which provides that — "no officer of employee in the Civil Service shall be removed except for cause as provided by law." (Article VII, Section 4.) .

In fact, in his concurring opinion in Eraña vs. Vergel de Dios (85 Phil., 17), our distinguished Chief Justice pointed out that the revocation of an appointment, if feasible, "should be communicated to the appointee before the moment he qualified," and that "any revocation thereafter, is tantamount to removal and must be judged according to the rules applicable to the removal" (emphasis ours). In the present case, the revocation of petitioner's appointment was not communicated to him before he qualified by taking his oath of office. It is not even claimed that any of the statutory causes for removal of petitioner herein exists, or that the procedure prescribed for such removal has been complied with.

6. Once an appointee has qualified, he acquires a legal, not merely equitable right, which is protected not only by statute, but, also by the Constitution, for it cannot be taken away from him, either by revocation of the appointment or by removal, except for cause, and with previous notice and hearing, consistently with said Section 4 of Article XII of our fundamental law, and with the constitutional requirement of due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58 N. v. 295; People vs. Gardner, 59 Barb 198; II Lewis Sutherland Statutory Construction, pp. 1161 and 1162; Mechem on Public Officers, Sec. 389; 22 R. C. L. 377- 378; 25 Am. Dec. 690-691, 703).

7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in support of the theory that Congress of the Philippines was not in "recess" on December 29, 1961, and that, accordingly, ad interim appointments could not validly be made in such date. The question involved in said case was whether a committee of the Senate of Arkansas could be authorized by the same to function after the adjournment sine die of the regular session of the state General Assembly. The State Supreme Court considered as decisive authority the view expressed by Judge Cooley, to the effect that a legislative committee "has no authority to sit during a recess of a House which appointed him, without its permission to that effect". The issue thus hinged on the meaning of the term "recess" as used by Judge Cooley. Resolving this question, said court held that the recess referred to by Judge Cooley was "only the intermission between the sittings of the same body at its regular or adjourned session and not to the interval between the final adjournment of one body and the convening of another at the next regular session"..

In this connection, it should be noted that, as an agency of the Senate, the committee involved in said case could not operate for its principal beyond the latter's term. Moreover, under the Constitution of Arkansas, the regular biennial session of the General Assembly could not exceed 60 days, unless by a vote of 2/3 of the members of each of the two Houses of the legislature. Inasmuch as the Senate could not, without the concurrence of the House, directly extend the period of its regular session, neither could it, without such concurrence, indirectly extend said period, by granting its aforementioned committee the authority to function beyond said period. As stated by the Court "the committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law", which the Senate may not enact, without the concurrence of the House..

The decision in said case did not seek to define the meaning of the term "recess" as used in any constitution or statute. It did not even refer to the authority to make appointments during "recess". It has absolutely no bearing, therefore, on the issue before us.

Upon the other hand, Dr. Jose M. Aruego, a prominent member of the constitutional convention, says, in his work on "The Framing of the Philippine Constitution" (Vol I, pp. 434-435), that the draft of the provision on ad interim appointments by the President, as submitted by the corresponding committee, followed the principles of the Jones Law and that the recommendation of the committee was readily approved on the floor of the convention, although the committee on style gave said provision its present phraseology. Pursuant to the Jones Law, "appointments made while the Senate is not in session shall be effective either until disapproval or until the next adjournment of the Senate". Hence, the term "recess" appearing in Section 10(4) of Article VII of our Constitution should be construed to mean "while Congress is not in session" and this is confirmed by the practice consistently observed in the Philippines for time immemorial, as well as the ad interim appointment extended by President Macapagal to respondent Castillo.

8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also, been invoked in support of the proposition that "an ad interim appointment is not complete until the appointee takes the oath of office and actually takes possession of the position or enters upon the discharge of its duties" and that, before such actual taking of possession, though after the oath taking, the appointee may be removed without cause.

We have not found in said case anything justifying such claim. The issue in said case was whether a state governor could recall an unconfirmed appointment of McChesney to the state textbook commission when there had been no session of the Senate subsequent to the appointment, and such issue was decided in the negative.

Although, in addition to accepting the appointment, McChesney had qualified and exercised the function of the office, the decision of the Court clearly indicates that it was not necessary for him either to discharge the duties of the office or even to take the oath of office, in order to render his appointment irrevocable. The Court explicitly declared that the appointment, once "completed by the executive is not subject to reconsideration or recall;" that the appointment "is complete when the appointing authority has performed the acts incumbent upon him to accomplish the purpose;" and that in the case of recess appointments, like that of McChesney," the appointment alone confers upon the appointee for the time being the right to take and hold the office and constitutes the last act respecting the matter to be performed by the executive power" completing the appointment and rendering the same irrevocable.

In short, the McChesney case is authority for the petitioner herein.

9. Most, if not all appointments made by the President have two (2) aspects, namely, the legal and the political. The first refers to his authority to make the appointment. The second deals with the wisdom in the exercise of such authority, as well as with its propriety. Whether given vacancy or number of vacancies should be filled, or who among several qualified persons shall be chosen, or whether a given appointment or number of appointment will favor the political party to whom the power of appointment belongs and will injure the interest of a rival political party and to what extent, are, to my mind, essentially and typically political matters. Hence, I believe that the question whether certain appointments should be sanctioned or turned down by reason of the improper, immoral or malevolent motives with which said matters were allegedly handled is, likewise, clearly political, and as such, its determination belongs, not to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on the Constitution, Vol. III 1326-1327), but to the political organ established precisely to check possible abuses in the exercise of the appointing power — the Commission on Appointments.

Indeed, I can hardly conceive of any question more patently and characteristically political than this one, or more appropriate for determination of said body. Neither the possible or probable control thereof by members of the Nacionalista Party nor the number of offices or appointments involved can affect the nature of the issue. Surely, its political character is the same whichever political party may have the largest number of votes in the Commission on Appointments. The big number of said appointments merely tend to make more manifest the political complexion thereof and its non-justifiable nature.

10. In Osmeña vs. Pendatum (L-17144, October 28, 1960), we refused to disturb the action of the House of Representatives in suspending a member thereof — who had made derogatory imputations against the President of the Philippines — upon the ground that such imputations constituted a breach of the courtesy due to a coordinate branch of the Government. Yet, in the present case, imputations similarly derogatory to the same branch of the Government are, in effect, made in the majority resolution.

I cannot see how such imputations can be reconciled with the position taken by this Court in the Osmeña case and in other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, May 8, 1951) in which it "fastidiously observed" the theory of separation of powers (Osmeña vs. Pendatum, supra). Thus, in Santos vs. Yatco (55 Off. Gaz. 8641), in which a department head was sought to be enjoined from electioneering, in view of the explicit provision of the Civil Service Act of 1959 (Republic Act No. 2260, section 29), prohibiting all officers and employees in the civil service, "whether in the competitive or classified, or non-competitive or unclassified service," from engaging directly or indirectly in partisan political activities or taking part in any election except to vote, we held that the issue therein raised was one of "impropriety as distinguished from illegality," and that, as such, it "is not justiciable by this Court." In Mabanag vs. Lopez Vito (78 Phil., 1), we refused to decide, upon the same ground, whether specified numbers of votes constituted three-fourths of all members of each House of Congress. In Vera vs. Avelino (77 Phil., 192), we not only declared that "the judiciary is not the repository of remedies for all political or social evils," but, also, quoted with approval the statement, made in Alejandrino vs. Quezon (46 Phil., 81), to the effect that "the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either House thereof, taken in pursuance of the power committed exclusively to that department by the Constitution." (Emphasis ours.) .

11. In the present case, we have completely reversed our stand on the principle of separation of powers. We have inquired into the motives of the Executive department in making the appointments in question, although it is well settled, under the aforementioned principle, that: .

Generally courts cannot inquire into the motive, policy, wisdom, or expediency of legislation.

The justice, wisdom, policy, necessity, or expediency, of a law which is within its powers are for the legislature, and are not open to inquiry by the courts, except as an aid to proper interpretation." (16 C.J.S. 471-478) .

If this is true as regards the legislative branch of the government, I can see no valid reason, and none has been pointed out, why the same norm should not govern our relations, with the executive department. However, we have not merely disregarded such norm. We are, also, in effect, restraining the Commission on Appointments — an organ of a coordinate, co-equal branch of the Government — from acting on the questioned appointments. What is more, we are virtually assuming in advance that said body — which has not been organized as yet and whose membership is still undetermined — will not act in harmony with the spirit of our Constitution.

12. It is trite to say that certain moral and political aspects of the issue before us cannot but produce a strong aversion towards the case of petitioner herein and the hundreds of others appointed under the same conditions as he was. Although members of the bench must always endeavor to minimize the influence of emotional factors tending to affect the objectivity essential to a fair and impartial appraisal of the issues submitted for their determination, it is only natural — and, I venture to add, fortunate (for, otherwise, how could they hope to do justice to their fellowmen?) — that they should basically react as other members of the human family. This is probably the reason why Justice Douglas of the Federal Supreme Court of the U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :

"Cases of notorious criminals — like cases of small, miserable ones — are apt to make bad law. When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. .... The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement.".

Let us hope that no such consequences will flow from the precedent established in this case.

BARRERA, J., dissenting:

The instant case started with a simple petition for prohibition and mandamus with preliminary injunction instituted by petitioner Aytona who claims to have been duly appointed ad interim Governor of the Central Bank, against respondent Castillo who, allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavily armed Philippine Constabulary Rangers, interfered with and prevented the petitioner in the discharge of his duties and prerogatives as such Governor of the Central Bank. During the hearing, however, and immediately thereafter, a great amount of extraneous matter affecting persons not parties to the proceedings has been introduced into the case and a veritable avalanche of memoranda after memoranda and manifestations after manifestations swelled the records and helped involve the issues. One among the dozens who asked to be admitted as amici curiae, even presented an answer in behalf of the people to support the side of the respondents. Unfortunately, in the confusion, the case of the immediate parties became obscured by considerations of circumstances and matters for and with which petitioner and respondents are not directly connected..

In my opinion, the fundamental questions which this Court is called upon to resolve in the present case a specifically: .

(1) Is the ad interim, appointment of petitioner Aytona valid when extended? .

(2) If so, did it automatically lapse with the ending the term of office of the twelve Congressmen composing one-half of the membership of the Commission Appointments? .

(3) May this appointment be legally recalled or withdrawal after Aytona has qualified? .

Before entering into the discussion of the "propriety, morality and wisdom" of the appointment, it is necessary, I believe, that the foregoing legal propositions must first be cleared out.

I. The Validity of Aytona's Appointment: .

Aytona's ad interim appointment is assailed on the theory that it was not made during a "recess" of Congress as provided in paragraph 4, section 10 of Article VII of the Constitution. It is claimed for the respondents dents that the word "recess" means "the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal, and not adjournment sine die." In support of this view, counsel cites the case of Tipton v. Parker, 71 Ark. 193, from which the foregoing quotation was taken.

An examination of this case, however, discloses that it did not refer to the power of the President to make ad interim appointments. The pronouncement was made in connection with the interpretation of Section 17, Article 5 of the Constitution of the State of Arkansas. The case involved the validity of the certificate of the auditor with reference to the legality of the expenses of a committee of the State Senate authorized by the latter to make certain investigations beyond the duration of the session of the General Assembly. The court, in declaring the certificate without sanction of law, stated: .

"The Senate has no power by resolution of its own to extend its session, and neither did it have power to such separate resolution to continue its committee, a mere agency of the body, beyond the term of the body itself which created it." .

in view of the provisions of the aforementioned Section 17, Article 5 of the state Constitution prescribing "that the regular biennial session of the Legislature shall not exceed 60 days, unless by 2/3 vote of the members elected to each house, and section 23 requiring a vote of the majority of each house to enact a law or pass a resolution having the force and effect of a law". Apparently an opinion of Judge Cooley seemingly to the contrary was cited to refute this view of the court, and so the decision went on to say:

Each house, says Judge Cooley, must also be allowed to proceed in its own way in the collection of such information may seem important to a proper discharge of its functions; and whenever it is deemed desirable that witnesses should be examined, the power and the authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect. But the house is at liberty to confer such authority if it sees fit.

It is in this connection and evidently in a desire to explain the opinion of Judge Cooley that the court made the pronouncement relied upon by respondents, thus: .

.... The recess here referred to by Judge Cooley we think should be construed to mean only the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal and not an adjournment sine die.

The conclusion reached by the court can not be otherwise. The case refers to the powers of one house of the state Legislature, with the concurrence of the other, to confer authority upon its own committee to act beyond the duration of the session of the General Assembly. Certainly, Judge Cooley's view that each house has power to confer authority to its committee to act during a recess must be understood to exist only during the life of the house creating the committee. It can not go beyond its own existence, that is, beyond its adjournment sine die.

But this ruling is no argument that the Executive's power to make appointments during such adjournment sine die does not exist just because a house of the legislature lacks power to authorize its committee to act during the same adjournment. One refers to the power of a defunct body to act beyond its life; the other refers to the power of another authority, the executive, to perform its functions after the expiration of that other body. Non-existence of the first does not mean non-existence of the other.

It is to be noted that the different counsel advocating the cause of the respondents are not even agreed in the application of their interpretation of the word "recess". Some of them argue that the interregnum which they contend is not recess, compromises the entire period between the adjournment of the 4th Congress in May, 1961 and the opening of the 1st session of the first session of the 5th Congress on January 22, 1962, so that all ad interim appointments extended during this period are null and void. Others claim that such interregnum is that period between December 13, 1961, date of adjournment of the last session of the 4th Congress, and January 22, 1962. It seems that President Macapagal is of this same view because his administrative Order No. 2 specifically refers to all appointments made after December 13, 1961. Still others, at least one, advanced the theory during the oral argument that the banned period is that between the adjournment of the 4th Congress in May, and December 30, 1961, excluding therefrom the period between this last date and January 22, 1962. Obviously, this theory was advanced in an effort to lend validity to the appointments recently made by President Macapagal, for if the entire period between May or December, 1961 to January 22, 1962 is held not a recess, but an adjournment sine die, then all appointments heretofore made by the present Chief Executive would suffer the same defect as those extended by former President Garcia. This last argument is unavailing because it, likewise, is untenable, tested upon the same authority cited by counsel, i.e., that the term "recess" means "the intermission between sittings of the same body." Since the 5th Congress has not as yet even convened, the period between December 30 and January 22 can not be a recess of the 5th Congress because it, definitely, is not an intermission between sittings of the same body.

In the circumstances, it seems it is an over-statement to say that the term "recess has a definite legal meaning in the sense attributed to it in the Tipton vs. Parker case. The confusion in the minds of the several counsels for the respondents as to the application of the alleged meaning of the term, indicates a belabored effort on their part to impute a meaning to satisfy their case. Upon the other hand, we find in "Hinds Precedents of the House of Representatives" (Vol. 5, pp. 852-853), a legislative interpretation by the United States Senate made during the discussion of the term "recess of the Senate" in connection with the President's1 power to make appointments, as follows: .

The word 'recess' is one of ordinary, not technical, signification, and it is evidently used in the constitutional provision in its common and popular sense. It means in Article II, above referred to, precisely what it means in Article III, in which it is again used. Conferring power upon the executive of a State to make temporary appointment of a Senator, it says: .

And if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.' .

It means just what was meant by it in the Article of Confederation, in which it is found in the following provision": .

The United States in Congress assembled shall have authority to appoint a committee to sit in the recess of Congress, it be denominated a committee of the States, and to consist of one delegate from each State.' .

It was evidently intended by the framers of the Constitution that it should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, in this connection the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as body in making appointments." .

The Attorney General of the United States was also of this view when he stated: .

The recess of the Senate during which the President shall have power to fill a vacancy that may happen, means the period after the final adjournment of Congress for the session and before the next session begins; while an adjournment during a session of Congress means a merely temporary suspension of business from day to day, or for such brief periods of time as are agreed upon by the joint action of the two houses. The President is not authorized to appoint an officer during the current holiday adjournment of the Senate, which will have the effect of an appointment made in the recess occurring between two sessions of the Senate." (President - Appointment Officers - Holiday Recess, 1901, 23 Op. Atty. Gen. 599, (U.S.C.A. Const. Art. 2, Sec. 2[2]..

It is worthwhile to note that our Constitution in paragraph 4, Section 10 of Article VII speaks of "recess" without making any distribution between the sessions one congress and the sessions of another. And it is trite to say that when the law makes no distinction, no distinction should be made, especially if to do so would result in a strained interpretation thereof and defeat the evident purpose of the framers of the Constitution - in this instance, to render it certain that at times there should be, whether the Congress is in session or not, an officer for every office, entitled to discharge the duties thereof. (5 Hinds, op. cit., p. 853.) .

II. Lapsing of Aytona's Appointment: .

It is contended for the respondents that since 12 members of the Commission on Appointments ceased to be such upon the expiration of their term of office at midnight of December 29, 1961, the Commission on Appointments likewise ceased to exist on the theory that creation can not exist beyond the life of its creator at least with respect to one-half of its members. This seems to stem from the wrong notion that the Commission on Appointments is a creature of the Congress. This confuses the Commission on Appointments as a constitutional body with its members. The body continued to exist, but only its membership changes periodically. When the Constitution provides in Section 13 of Article 6 thereof that "the Electoral Tribunals and the Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representatives shall have been organized with the election of their President and Speaker, respectively", it did not mean that the Senate and the House of Representatives thereby create said bodies, no more than the President can be said to create the Supreme Court by appointing the Justices therein. It simply ordained that the Commission be constituted or organized by electing the members thereof, whose positions have already been created in virtue of Section 12 of the same Constitution. To hold the Electoral Tribunals and the Commission on Appointments are non-existing during the period from December 30, 1961 to January 22, 1962 (and during the corresponding period every four years thereafter) will result in an absurdity and a situation destructive of the normal processes provided in the Constitution. One of such absurd results would be that no electoral protest against any elected and proclaimed congressman or senator can be legally filed with the Electoral Tribunals within the period prescribe by their rules, that is, within fifteen days following the proclamation of the results of the election, which period falls within the time when the Electoral Tribunals (as is the case of Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention are cited to support the theory that the Commission on Appointments is not a permanent commission. A review of the records, however, of that convention reveals that what was intended in the proposed draft was to authorize the Commission on Appointments to hold sessions even when the Congress is not in session. The mere fact that such a proposal was defeated and, consequently, the word "permanent" was not adopted in the final text, does not import that the Constitution meant to give an off and on existence to the Commission on Appointments lapsing every four years when the twelve of its members cease to be such. On the contrary, it seems more logical to hold that the legal existence of the Commission as well as the Electoral Tribunals continue irrespective of the vacancies that may exist in the membership thereof. It is for this reason that the personnel of these bodies do not cease periodically, but continue to perform their duties in their respective offices for which they are legally paid their salaries by the government. It seems clear, therefore, that the Commission on Appointments did not lapse on December 29, 1961. Neither did the appointment of Aytona lapse on that date because the same could not be acted upon by the Commission on Appointments during the recess of the Congress.

III. May the appointment of Aytona be legally recalled or withdrawn after he has qualified for the position to which he was appointed? .

Precedents are to the effect that when once an appointment has been extended by the Chief Executive who, as is provided in our Constitution, has the sole power of appointment subject only to the consent of the Commission on Appointments, and the appointee has accepted the appointment, the same becomes complete and the appointing power can not withdraw it except in cases where the tenure of the appointee is at the Chief Executive's pleasure or upon grounds justifying removal and after due process. This is not because the appointment constitutes a contract (for truly a public office can not be subject of any contract), but because of the provisions of the Constitution itself to the effect that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." If, therefore, the recall or the withdrawal of the appointment of Aytona was not authorized by law, then his assumption of the functions of his office on January 2, 1962 was clearly within his legal right and the interference of Castillo, aggravated by the assistance or at least the presence of members of the Armed Forces, was clearly unlawful.

The foregoing disposes, in my opinion, the legal issue and the rights of the parties in the present case. But against these, to me, clear mandates of the Constitution and the legal and judicial precedents, respondents have appealed to this Court for it to exercise "judicial statesmanship" invoking the spirit of the Constitution. It is claimed that there was a manifest abuse of power by the outgoing President in extending, on the eve of the expiration of his term, some three hundred and fifty ad interim appointments to fill an equal number of vacancies in the different branches of the government; that no proper consideration was given of the merits of the appointees, it appearing that in the case of at least some of the appointees to the judiciary, their assurance of an immediate assumption of office or the taking of oath was made a condition precedent to the appointments, and that there was a wild scramble in Malacañan among the appointees on the night of December 29. We are scandalized by this and expect the Court to apply the remedy. What of the proceedings in Congress during the last day of session when bills after bills are passed in a manner not too dissimilar to the described scene in Malacañan? Can the Supreme Court be expected to correct this too by declaring all such laws as invalid just as we are asked to invalidate these appointments? .

Be this as it may, whatever may be our personal views on this matter, I agree with Mr. Justice Concepcion that not all wrongs or even abuse of power can be corrected by the exercise of the high prerogatives of the Supreme Court vested in it by the Constitution. As I take it, the higher and more delicate is the prerogative, the greater should be the degree of self-restraint in the exercise thereof, lest the fine and tested scale of checks and balances set up by the Constitution be jarred. In the same manner that we expect circumspection and care, even double care, on the part of the other two co-equal coordinate departments of the government, so must we be most cautious and slow in judging the morality, propriety and good faith involved in the actuations of the other departments in matters coming within their competence. The remedy, I believe, under the circumstances is with the Commission on Appointments to which the appointments have been submitted. The more fact that it is expected that the Commission on Appointments would be controlled by the party of the outgoing President is immaterial, because legal processes can not be made to depend upon the fortunes of political parties, for there is still the ultimate remedy by the people in all authority. At any rate, as has already been aptly said: the judiciary is not the repository of remedies for all political or social evils, and that the judicial department has no power to revise even arbitrary or unfair action of the other departments taken in pursuance of the power committed exclusively to those departments by the Constitution..

May I add: all the scandalous circumstances brought to the attention of this Court did not link the petitioner herein, save for the fact that this appointment was extended on the same day as those issued under the unusual and irregular circumstances attending the other appointments. If at all, there is evidence in favor of Aytona to the effect that insofar as he is concerned, his appointment to the position of Governor of the Central Bank has been under consideration for a long time and that he is qualified for the position. It can not, therefore be said that with respect to him there was no mature deliberation and due consideration of his qualifications and of the need of the service. he charge was made that the position of Governor of the Central Bank has been vacant for several months and that the President should have filled it earlier. Yet, when the President actually filled it as he did, he is criticized claiming that there was no immediate need for such action in view of the fact that there was an Acting Governor. That it was really necessary to fill the position is evidenced by the act of President Macapagal himself in making his own appointment hardly twenty-four hours after he recalled the appointment of Aytona.

Summarizing, I would say that all the circumstances cited by the respondents that have surrounded the issuance of the appointments in question, have to do with the mode or manner of the exercise of the authority to make the appointment, quite apart from the existence of the authority itself. The observance of good faith, morality and propriety by the other two co-equal coordinate departments in the performance of their functions must be secured by their sense of duty and official oath hand not by any supervisory power of the courts..

The role of courts in our scheme of government is to interpret the law and render justice under it. This simply means that whatever may be our own personal feelings as to the propriety, morality, or wisdom of any official act or actuation of a public officer or any agency of the government within their respective competence brought to the attention of the Court for adjudication, they should not be permitted to prevail over clear legal considerations, for ours is a regime under the Rule of Law..

In view of the foregoing, I am constrained to register my dissent.



1These positions had been vacant for months.

2The 4th Congress expired at midnight December 29, 1961..

389 A.L.R., 135 Anno.

PADILLA, J., concurring:

1Section 3, Article VI.

2Section 6, Article VI.

3Section 9, Article VI.

4Section 4, Article VII.

BARRERA, J., dissenting:

1The power of the U.S. President to make appointments is by and with the advice and consent of the Senate..

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